Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity ( 2015 )

ACCEPTED
03-15-00262-CV
7959373
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/23/2015 5:10:56 PM
JEFFREY D. KYLE
CLERK
No. 3-15-00262-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
In the Court of Appeals 11/23/2015 5:10:56 PM
Third District of Texas — Austin JEFFREY D. KYLE
Clerk
TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE,
Appellant,
v.
TEXAS BOARD OF CHIROPRACTICE EXAMINERS AND YVETTE
YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY,
Appellees.
On Appeal from 201st District Court, Travis County, Texas
Cause No. D-1-GN-14-000355
ACUPUNCTURE ASSOCIATION’S RESPONSE TO THE
CHIROPRACTIC BOARD’S SECOND MOTION TO STRIKE
Craig T. Enoch
Melissa A. Lorber
Shelby O’Brien
ENOCH KEVER PLLC
600 Congress Avenue, Suite 2800
Austin, Texas 78701
(512) 615-1200 / (512) 615-1198 fax
Attorneys for Appellant
1
Shortly on the heels of filing a first motion to strike all citations to the
internet found in the Acupuncture Association’s opening brief, the Chiropractic
Board has filed a Second Motion to Strike, this time asking this Court to strike
portions of five briefs submitted by amicus curiae. Appellant Texas Association of
Acupuncture and Oriental Medicine (“Acupuncture Association”) respectfully asks
the Court to deny the Chiropractic Board’s Second Motion to Strike.
An amicus curiae, or “friend of the court,” is “[a] person who is not a party
to a lawsuit but who petitions the court or is requested by the court to file a brief in
the action because that person has a strong interest in the subject matter.” In re
A.J.L., 108 S.W.3d 414, 420 (Tex. App.—Fort Worth 2003, pet. denied) (quoting
BLACK’S LAW DICTIONARY 83 (7th ed. 1999)). “An amicus curiae is not a party to
the suit and may only make suggestions to the court.” Kelley v. Scott, No. 14-01-
00696-CV, 2003 WL 21229275, at *1 (Tex. App.—Houston [14th Dist.] May 29,
2003, no pet.). Thus, amicus briefs have not traditionally been limited to only
arguments made by, or the record provided by, the parties.
The Chiropractic Board objects to eleven citations, most of which are to
internet websites, arguing that these references “cite factual material outside the
record” and thus represent an impermissible attempt to expand the record on
appeal. See Chiropractic Board’s Second Motion, at 1. The Chiropractic Board’s
arguments are similar to those raised in its first motion to strike, and should be
2
rejected for the reasons stated in the Acupuncture Association’s response to that
motion. In addition, this Court should deny the Chiropractic Board’s Second
Motion to Strike for the following reasons.
The amicus briefs at issue were submitted by two schools and three
professional associations. Many of the challenged citations point the Court to the
official policy statements of each of these entities.1 It is unclear how these
documents fall outside the scope of amicus briefing, given that the very purpose of
amicus briefing is to allow an interested entity to identify itself, its interest in, and
its position on issues before the Court. Indeed, the Supreme Court of Texas
encourages amici to “describ[e] in concrete terms how a particular outcome will
adversely affect amic[i] and others similarly situated.”2 The five amici here have
followed this guideline by (1) pointing the Court to their respective definitions of
acupuncture and chiropractic medicine,3 and (2) using web content to illustrate
how the Chiropractic Board’s statutory interpretation will affect practitioners and
prospective patients.4
1
See Chiropractic Board’s Second Motion to Strike, at 1-2 (objections 1, 2, 3a, 3b, 4a).
2
BLAKE A. HAWTHORNE, CLERK, THE SUPREME COURT OF TEXAS, SUPREME COURT INTERNAL
OPERATING PROCEDURES (2015), available at http://www.txcourts.gov/media/1047308/internal-
operation-procedures-2015-appendix.pdf.
3
See Chiropractic Board’s Second Motion to Strike, at 1-2 (objections 1, 2, 3a, 3b, 4a).
4
See id., at 1-2 (objections 3d, 4a, 5a, 5b).
3
The Chiropractic Board objects to several references to certification
standards and best practices because those standards and practices are not part of
the record on appeal.5 Yet the Chiropractic Board has not provided any authority
for the proposition that an amicus brief may only incorporate facts of record.
Further, the Chiropractic Board has not identified even one case in which a court of
appeals struck an amicus brief for any reason—much less for the inclusion of
undeniably relevant information. The Chiropractic Board likely lacks authority on
this point because amici are not constrained to materials of record. To the contrary,
amicus briefing exists “to insure that [the] court [is] furnished with as much
relevant information as possible.” Little v. Little, 576 S.W.2d 493, 494 (Tex. Civ.
App.—San Antonio 1979, no writ). For that reason, amici prove helpful by
providing additional context for the issues before the Court. Indeed, the Attorney
General himself routinely incorporates new information when filing briefs as
amicus.6
Moreover, the Supreme Court relies on amicus briefs irrespective of whether
those briefs constrain themselves to the record. See generally Little v. Tex. Dep’t of
5
See id., at 1-2 (objections 3c, 4a, 4b, 4c).
6
E.g., Brief of Amicus Curiae the State of Texas, at 8, Matthews v. Kountze Ind. Sch. Dist., No.
14-0453, (Tex. Sept. 25, 2015) available at
https://www.texasattorneygeneral.gov/files/epress/files/2015/Amicus_Brief_Matthews_v_Kount
ze.pdf (citing to internet archive of school board minutes).
4
Criminal Justice, 148 S.W.3d 374 (Tex. 2004). Little involved a disability
accommodation dispute between an employer and an employee with a prosthetic
leg. Id. at 275. A group of disability advocates submitted an amicus brief
introducing a wealth of additional information about prosthetic devices, none of
which had been introduced by the parties to the case. Id. at 381. Not only did the
Supreme Court not find the brief objectionable, the Court quoted from the brief in
its unanimous opinion. Id. There is simply no support for the Chiropractic Board’s
argument that an amicus must constrain itself to the record, and there is no cause to
strike the challenged portions of the amicus briefs. See TEX. R. APP. P. 11.
PRAYER
Appellant Texas Association of Acupuncture and Oriental Medicine
respectfully prays that this Court deny the Chiropractic Board’s Second Motion to
Strike. The Acupuncture Association further requests any other relief the Court
deems appropriate at law or equity.
5
Respectfully submitted,
By: /s/ Craig T. Enoch
Craig T. Enoch
Texas Bar No. 00000026
cenoch@enochkever.com
Melissa A. Lorber
Texas Bar No. 24032969
mlorber@enochkever.com
Shelby O'Brien
Texas Bar No. 24037203
sobrien@enochkever.com
ENOCH KEVER PLLC
600 Congress Avenue
Suite 2800
Austin, Texas 78701
512.615.1200 Telephone
512.615.1198 Fax
Attorneys for Texas Association of
Acupuncture and Oriental Medicine
6
CERTIFICATE OF SERVICE
I hereby certify that, on November 23, 2015, the Acupuncture Association’s
Response to the Chiropractic Board’s Second Motion to Strike was served via
electronic service on the following:
Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Joe.Thrash@texasattorneygeneral.gov
Matthew M. Mix D.C.
Chiropractic Society of Texas
312 E. Church St.
Livingston, TX 77351
info@texaschiropractic.org
John Paul Liang
American College of Acupuncture and Oriental Medicine
9100 Westpark Dr.
Houston, TX 77063
jpliang@acaom.edu
William R. Morris
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd.
Austin, TX 78745
wmorris@aoma.edu
Linda Henderson
9100 Westpark Dr.
Houston, TX 77603
lhenderson@acaom.edu
7
Gene Kuntz II
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd.
Austin, TX 78745
gkuntz@student.aoma.edu
/s/ Craig T. Enoch
Craig T. Enoch
8